People v. Orr CA6

Filed 10/11/13 P. v. Orr CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

THE PEOPLE, H039279 (Santa Clara County Plaintiff and Respondent, Super. Ct. Nos. C1073752, C1074526)

v.

BRIAN KEITH ORR,

Defendant and Appellant.

Defendant Brian Keith Orr appeals from a judgment of conviction after he pleaded no contest to two counts of second degree robbery (Pen. Code, §§ 211, 212.5, subd. (c) – counts 1 & 3)1, two counts of false imprisonment (§§ 236, 237 – counts 4 & 5), and one count of resisting arrest (§ 148, subd. (a)(1) – count 2) in case No. C1073752. Defendant also pleaded no contest to eight counts of second degree robbery (§§ 211, 212.5, subd. (c) – counts 1, 3, 4, 6, 7, 8, 9, & 12) and three counts of false imprisonment (§§ 236, 237 – counts 2, 10, & 11) in case No. C1074526. The trial court denied defendant‟s Marsden motion2 and his motion to withdraw his plea. Pursuant to the negotiated agreement, the trial court sentenced defendant to eight years in state prison. Defendant filed a timely notice of appeal and obtained a certificate of probable cause.

1 All further statutory references are to the Penal Code. 2 People v. Marsden (1970) 2 Cal.3d 118.

I. Statement of Facts A. Case No. C1073752 Counts 3, 4, and 5 At approximately 11:00 p.m. on January 7, 2010, Milpitas Police Detective Steven Fox responded to a Burger King in Milpitas. Martin Parra told Fox that he had been counting money in the office with Enrique Victorio when he heard a commotion in the kitchen. He then saw a man holding a small silver gun to the neck of Abraham Munoz. The man brought Munoz to the office, pointed the gun at Parra, ordered Parra to give him money on the counter, and ordered Munoz and Victorio to lie down on the floor. After Parra gave the robber approximately $1,800, he asked for the money in the safe. However, the suspect fled when a customer arrived. According to Parra, the robber was wearing a blond wig, a tan nylon over his face, kitchen gloves, and a black jacket. The surveillance video at the Burger King reflected that the robber wore a black jacket with a “Sean John” label and that his blond wig appeared to have braids woven into it. Counts 1 and 2 At approximately 1:00 p.m. on April 12, 2010, William Vriend was working at Check „n Go in Campbell. A man, wearing a black bandanna and sunglasses, entered the store, told Vriend that he had a Taser, and asked for the cash drawer, the safe, and the videotape. Vriend opened the cash drawer and gave the robber about $600, punched the code for the safe, and told the robber that there would be a 10-minute delay. After 10 minutes, Vriend opened the safe and gave the robber about $1,100 to $1,200. During the robbery, the robber appeared to be speaking to someone through a wireless device. The robber was wearing a blue, black, and white jacket, and black gloves. Campbell Police Officer Mark Cutler received a dispatch at approximately 1:10 p.m. regarding an alarm at Check „n Go. He went to the location and saw the robber, later identified as defendant, leaving. Cutler ordered defendant to stop at 2